Derischebourg v. Clark

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court are New Orleans Harbor Police Officer Chris Clark Jr.'s, the Board of Commissioners of the Port of New Orleans's, and Lexington Insurance Company's motions^[1] for summary judgment. For the following reasons, Clark Jr.'s motion is denied, the Port's motion is granted in part and denied in part, and Lexington's motion is granted.

         I.

         On the night of Clark Jr.'s graduation from college, his family and friends took him out to dinner in New Orleans. Clark Jr.'s family and friends took two cars to the restaurant.

         When they went to pay for parking at a parking lot on Poydras Avenue, they did not notice that the parking machine did not give change. As a result, they accidently paid more than they intended for a single parking space. But rather than purchase a parking slip for the other car, they parked both of the cars next to each other in the lot and left the parking slip on the dashboard of one of the cars. Clark Jr. left his Harbor Police ID on the dashboard of the other car. Both of the cars were booted when they returned.

         Plaintiff Alfred Derischebourg was working as the parking lot's “boot man” that evening. He booted the cars. Then, when Clark Jr.'s family called to get the boots removed, Derischebourg was dispatched to address the situation. After Derischebourg arrived, he explained the rules to Clark Jr. and Clark Jr.'s mother and quoted a price for removing the boots. They refused to pay, and Derischebourg left.

         The Clark family called Derischebourg back to the parking lot later in the evening. By that point, more of Clark Jr.'s friends and family had gathered. One of those individuals was David Cantrelle-a badge-toting deputy constable for the First City Constable.

         Upon arrival, Derischebourg exited his car and began discussing the matter with Clark Jr.'s mother. During that conversation, Derischebourg got back in his pickup truck. Clark Jr.'s friends and family-but not Clark Jr.-surrounded the pickup truck. Clark Jr.'s aunt and uncle stood in front, Clark's mother and Cantrelle next to the driver's door, and Clark Jr.'s father (“Clark Sr.”) behind.

         The parties disagree about what happened next. According to Clark Jr., Derischebourg began to back up “a couple of feet - four or five feet, maybe, ” in a “fast” and “erratic” manner, R. Doc. No. 175-3, at 38, forcing Clark Jr. and Cantrelle to remove him from the car for the safety of everyone there. Clark Jr. claims his intervention was provoked by seeing Derischebourg's moving pickup truck hit Chris Clark Sr. R. Doc. No. 175-3, at 38. Meanwhile, according to Derischebourg, he merely shifted his car from drive to park-causing the reversing lights to temporarily go on- but his car did not move. (Clark Sr. later reported to police that the car did not strike him. Instead, Clark Sr. said that that he pushed himself away from the vehicle when he saw the reversing lights go on. R. Doc. No. 175-5, at 5.)

         Nonetheless, all parties agree that Clark Jr.'s aunt screamed and Cantrelle used force to remove Derischebourg from the car. Clark Jr. ran over to help Cantrelle restrain Derischebourg. They pinned Derischebourg to the ground and handcuffed him. Derischebourg also claims that they punched him and held him down while Derischebourg was assaulted by Clark Jr.'s friends and family. Derischebourg's body camera recorded video and audio from the incident, though the video camera fell off of Derischebourg when he was removed from the car. The camera landed face down, resulting in there only being an audio recording of the takedown.

         New Orleans police arrived on the scene shortly thereafter. They ordered Derischebourg released. After investigating, the police issued summonses to Clark Jr., Cantrelle, as well as some of Clark Jr.'s friends and family for simple assault.

         Derischebourg filed this civil case which alleges federal and state tort claims against Clark Jr., the Port of New Orleans (Clark Jr.'s employer), Cantrelle, the First City Constable (Cantrelle's employer), and Clark Jr.'s friends and family. Derischebourg further amended his case to raise a claim against Lexington Insurance Company (the insurer for Clark Jr.'s aunt and uncle) under the direct action statute.

         Derischebourg also filed a criminal complaint against Clark Jr., Cantrelle, and Clark Jr.'s family and friends. This matter was stayed during the pendency of the criminal proceedings. It was then reopened after all of the defendants were found not guilty of all charges in municipal court.

         Clark Jr., the Port, and Lexington Insurance Co. now move for summary judgment.

         II.

         Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

         Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts, ' by ‘conclusory allegations, ' by ‘unsubstantiated assertions, ' or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party's evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

         III.

         Clark Jr. moves for summary judgment on (1) his claim of qualified immunity to plaintiff's federal and state constitutional law claims and (2) his claim of discretionary immunity to the state law tort claims. Clark Jr. also moves for summary judgment on the merits of plaintiff's tort claims, but he did not comply with the scheduling order requiring him to discuss all proposed summary judgment issues at a status conference.

         A.

         Even though Clark Jr. was off-duty at the time he pinned and cuffed Derischebourg, he is entitled to qualified immunity insofar as his conduct did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Legrand v. Gillman, 576 F. App'x 334, 335 n.1 (5th Cir. 2014) (off-duty officers may raise qualified immunity defense). When qualified immunity is properly applied, “it protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). “Once a defendant invokes qualified immunity . . . the burden shifts to the plaintiff to demonstrate the inapplicability of the defense.” McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013).

         Courts apply a two-part test when determining qualified immunity. First, a court must decide whether the officer's conduct violated a constitutional right. See Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017). Second, the court must decide whether the constitutional right at issue was clearly established at the time of the alleged violation. Id. Derischebourg claims that Clark Jr. violated the Fourth Amendment by unlawfully seizing Derischebourg and using excessive force when doing so.

         Neither party disputes the constitutional principles underlying Derischbourg's constitutional claims-the Fourth Amendment right to be free from unlawful arrest and detention as well as the Fourth Amendment right to be free from excessive force during a seizure. Because neither party disputes the clarity of the underlying Fourth Amendment rights, both the first and the second prong of the qualified immunity analysis “necessarily involves a reasonableness inquiry.” Id.

         After all, Derischebourg needs to show that Clark Jr. acted unreasonably to demonstrate a Fourth Amendment violation in the first place. See, e.g., Heien v. North Carolina, 134 S.Ct. 530, 536 (2014) (“As the text indicates and we have repeatedly affirmed, the ultimate touchstone of the Fourth Amendment is reasonableness.” (internal quotation marks omitted)). Then, when determining whether a constitutional right was clearly established-that is, whether Clark Jr. could have reasonably believed that his “conduct was not barred by law, ” Heaney, 846 F.3d at 801-Derischebourg again has to demonstrate that Clark Jr.'s actions were unreasonable.

         In each instance, the reasonableness inquiry is “an objective one.” Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994) (Wilkinson, J.); see e.g., Harlow, 457 U.S. at 818 (qualified immunity inquiry examines “objective reasonableness of an official's conduct”); McCreary, 738 F.3d at 657 (“Fourth Amendment compliance is, as a general rule, assessed based on objective reasonableness and not subjective intent.”). “To gauge objective reasonableness, a court examines only the actions at issue and measures them against what a reasonable police officer would do under the circumstances.” Rowland, 41 F.3d at 172. “The relevant question . . . is whether a reasonable officer could have believed” his actions “to be lawful” under the Fourth Amendment “in light of clearly established law and the information the . . . officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).

         In light of the central role that reasonableness plays in the qualified immunity inquiry, Clark Jr. focuses on the argument that his reaction was reasonable in light of the information he had at the time. Clark Jr. suggests that he had a reasonable belief that Derischebourg's conduct “posed a threat to the safety of the individuals in the parking lot unless he was restrained.” R. Doc. No. 135-2, at 4.^[2]

         Clark Jr.'s argument requires the Court to credit Clark Jr.'s account that he saw the car erratically move “four or five feet” and hit his father, R. Doc. No. 175-3, at 38, rather than Derischebourg's account that the car did not move, R. Doc. No. 175-2, at 163. However, this Court cannot simply find Clark Jr.'s account more credible than Derischebourg's on a motion for summary judgment. See, e.g., Payne v. City of Olive Branch, 130 F. App'x 656, 660-61 (5th Cir. 2005). And there is such a significant disparity between Clark Jr.'s account that he observed the car move a number of feet in an erratic fashion and hit his father, and Derischebourg's account that the car did not move at all, that this Court cannot simply treat both ...